Case number: 17077/2012 - Juta · Case number: 17077/2012 (2) ... Because the content of the...
Transcript of Case number: 17077/2012 - Juta · Case number: 17077/2012 (2) ... Because the content of the...
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case number: 17077/2012
In the matter between:
VUYUSILE EUNICE LUSHABA Plaintiff
and
THE MEC FOR HEALTH, GAUTENG Defendant
________________________________________________________________
JUDGMENT
________________________________________________________________
ROBINSON AJ
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.
26 NOVEMBER 2014 R M ROBINSON
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TABLE OF CONTENTS
A. INTRODUCTION 3 - 4
B. THE LITIGATION TIME LINE 4 - 10
C. THE RULE NISI AFFIDAVITS 11 - 20
D. EFFECT OF THE EVIDENCE 20
E. SUBMISSIONS ON BEHALF OF THE DEFENDANT 21 - 23
F. DEFENDANT’S BLIND RELIANCE ON DR MASHAMBA 23 - 27
G. COSTS DE BONIS PROPRIIS? 28 - 32
H. THE DUTY ON THE STATE IN LITIGATION 32 - 34
I. COURT PRONOUNCEMENTS ON THE STATE ATTORNEY 34 - 45
and PUBLIC OFFICIALS
J. CONCLUSION 45 - 46
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A. INTRODUCTION
1. On 16 October 2014 this court made an order, declaring the defendant 100%
liable for the plaintiff’s damages arising out of the birth with disability of her son,
Menzi Polite Lushaba and ordering the defendant to pay costs on an attorney and
client scale. It also issued a rule, calling upon the defendant to show cause on
Tuesday 28 October 2014, with affidavits filed by 23 October 2014,
1.1. why he (it should have been she) should not be held personally liable de bonis
propriis on the attorney and client scale, jointly and severally with the
defendant, for the costs;
1.2. alternatively, and should she be of the view that she should not be held
personally liable, the defendant was called upon to identify such persons in
the Department of Health of Gauteng, as well as such persons in the office of
the State Attorney, who should be held personally liable for the costs as well
as the reasons why they should be so held liable.
2. The affidavits contemplated in paragraph 136 of the order, being only filed on 27
October 2014, were accompanied by an application for condonation for the late
filing thereof. There was no opposition from the applicant and the affidavits were
admitted. Argument was presented to me on the issues arising from the rule nisi
order on 28 October 2014 by Mr Latib appearing on behalf of the defendant.
There was no appearance for the plaintiff.
3. Four persons deposed to affidavits in response to the rule nisi. These are:
3.1. Mr Ezekiel Matlou, an attorney in the employ of the State Attorney and the
person appointed to deal with this matter on behalf of the defendant;
3.2. Mr Jabulani Macheke, a senior legal administrative officer employed in the
legal services section of the department of health, Gauteng;
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3.3. Dr Kgoposo Cele, a medical practitioner employed as a medico – legal
advisor by the department of health, Gauteng; and
3.4. Ms Qedani Dorothy Mahlangu, the MEC for the department of health,
Gauteng.
B. THE LITIGATION TIME LINE
4. The litigation time line is instructive. I list it below.
5. Summons was issued on 21 April 2012.
6. Notice of intention to defend was delivered on 31 May 2012.
7. Also on 31 May 2012 the defendant delivered a notice in terms of rule 36(4),
calling upon the plaintiff to make available medical reports, hospital records, X –
ray photographs or other documentary information of a like nature relevant to the
assessment of the damages or compensation in respect of bodily injury alleged to
have been suffered by the plaintiff. The plaintiff’s attorneys responded by
delivering what appears to be the neonatal records on 18 June 2012.
8. The plaintiff placed the defendant under bar by notice delivered on 15 August
2012.
9. The defendant delivered its plea on 22 August 2012.
10. On 20 September 2012 the plaintiff delivered its 35(1) notice. This was responded
to by a discovery affidavit delivered by the defendant on 20 February 2013.
Because the content of the discovery affidavit is of relevance in this matter, some
reference is made to its content.
10.1. Mr Macheke went on oath to state that the defendant has “in his
possession or power documents relating to the matters in question in
this suit set forth in the First and Second Schedules hereto.” Also
under oath was claimed that neither the defendant nor his attorney
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“now or ever had in his possession, custody or power or in the
possession, custody or power of any person on his behalf, any
documents or copies or extracts from any documents relating to the
matter in question in this action other than and except the documents
set forth in the First and Second Schedule annexed hereto.”
10.2. That was a startling claim to make, considering that the First Schedule
consisted of
10.2.1. all pleadings and notices under case 12/17077;
10.2.2. three letters, being correspondence between the plaintiff’s attorney to
the defendant and her attorneys respectively.
10.3. The Second Schedule lists matters claimed to be confidential and
makes no mention of hospital records. I do not understand how the
MEC for Health can be said not to have hospital records of state
hospitals under her jurisdiction under her power or control. The issue
was not explained.
11. A notice to attend a rule 37 conference was delivered on 20 September 2012.
11.1. A pre - trial conference was held on 30 May 2013.
11.2. At this meeting Mr Matlou undertook to respond to the further issues
raised in the rule 37(4) notice by 7 June 2013. He did not do so.
11.3. The plaintiff also indicated that it would send the defendant a written
list of documents it required from the defendant, and also listed those
documents at the meeting. The documents are clearly relevant. I list
them below. The defendant undertook to indicate to the plaintiff by
Friday, 7 June 2013 when it “will be able to respond to this request.” It
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does not appear that it did so, considering the plaintiff had to bring an
application to compel more than a year later.
12. The plaintiff’s rule 35(3) notice was delivered on 27 July 2013. It requested:
12.1. results of tests performed on Menzi;
12.2. antenatal and labour – related records of the plaintiff relating to the birth of
Menzi Lushaba;
12.3. images and/or reports of the CT scan of Menzi’s brain performed and
requested on 28 August 2009.
The plaintiff may have been forgiven expecting the defendant to discover
these documents, particularly the antenatal and labour – related records of the
plaintiff. The indifference of the defendant’s advisors to these documents is
one of the staggering features of this case.
13. On 1 August 2013 the summary of the opinion of Dr Arend van den Heever (the
plaintiff’s expert) was delivered to the offices of the State Attorney. This is the
report that was contained in the Liability Bundle and in which Dr van den Heever
lists the facts determinative of this case. The defendant’s advisors did not brief Dr
Mashamba with a copy of this report.
14. The plaintiff delivered her so - called “Liability Bundle”, containing the medical
records (including the crucial records of events on 30 June 2000 from 12h00
preceding and of the birth) and including the report of Dr van den Heever, to the
office of the State Attorney on 23 August 2013 and filed it in court on that date.
15. Mr Matlou only instructed Dr Mashamba, the defendant’s expert witness, to
provide an expert opinion on 4 September 2013, with the trial set down for
hearing on 13 September 2013.
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15.1. The letter of instruction to Dr Mashamba requests him to advise whether, in
his opinion, there was negligence by the medical staff that treated the
mother of the child. It encloses the neonatal hospital records. For reasons
not explained, neither the antenatal records; the labour records; the Liability
Bundle nor the report of Dr van den Heever, containing the antenatal and
delivery records, were provided to Dr Mashamba. Dr Mashamba was
inadequately briefed as a result of which he was not placed in a position to
advise adequately and meaningfully on the merits.
15.2. Despite being hampered by the absence of essential evidence, Dr
Mashamba provided what passes for his report on 9 September 2013.
15.3. Mr Matlou and counsel consulted with Dr Mashamba on 11 September
2013, evidently sans the benefit of the crucial records. Despite the trial
being set down for 13 September 2013, Dr Mashamba’s report was not
provided to the plaintiff. No explanation is provided for this.
16. Because of the unavailability of the plaintiff’s experts, the trial of 13 September
2013 was postponed sine die. It was subsequently set down for 7 October 2014.
17. The defendant’s expert report was provided to the plaintiff’s attorneys on 3
October 2014.
17.1. In explanation of the late delivery of the defendant’s expert report, Mr
Matlou says that he instructed the messengers at the offices of the State
Attorney to deliver the defendant’s rule 36(9)(a) and (b) notice in respect of
Dr Mashamba’s evidence on 11 March 2014.
17.2. Mr Matlou appears not to have given further attention to the matter, as he
only noticed on 3 October 2014, being the Friday before the
commencement of trial, that the defendant’s expert notices were not
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reflected in the index to the plaintiff’s bundle. Ostensibly it did not occur to
him to consult Dr Mashamba afresh to obtain his views on the report of Dr
van den Heever, nor to concern himself with the matter of a joint expert
minute. The discovery that the report had not been filed caused him to
prepare a new notice which he sent to the plaintiff’s attorneys on 3 October
2014 with a copy of the report.
18. On 26 June 2014 the plaintiff’s attorneys sent a telefax to the State Attorney,
requesting a response to the rule 37 questions, Mr. Matlou not having made good
on his promise to reply by 7 June 2013.
18.1. Mr. Matlou did not respond to the fax of 26 June 2014.
18.2. The plaintiff’s application to compel the defendant to respond to the rule 37
questions was delivered on 30 July 2014. This, likewise, did not elicit a
response from Mr. Matlou.
18.3. The application to compel was heard on 13 August 2014, which led to the
order of Makume J, compelling the defendant to respond.
18.4. The defendant’s answer to the rule 37 questions was eventually, more than
a year after the promised date, delivered to the plaintiff on 18 August 2014.
No acceptable explanation was provided for the failure to respond
timeously, nor for the reason why the plaintiff was obliged to turn to the
Court to compel the defendant to reply. Mr Matlou says that he was
“dealing with a number of matters and forgot to attend to the reply”.
18.4.1. This answer is unsatisfactory. Attorneys deal, routinely, with a
number of matters. But even if human error excuses the forgetfulness,
it does not explain Mr Matlou’s failure to respond to the request for
compliance, received on 26 June 2014, nor to the application to compel
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which was, on his own version, received on 30 July 2014. There was,
in my mind, no reason to put the plaintiff to the expense of having to
go to court to compel a response from the defendant.
18.4.2. Mr Matlou argues that the Rules impose no time frame on a response
and that the plaintiff made no attempt to obtain a response before the
13 September 2013 set down. It is not clear what point Mr Matlou
wants to make with these statements. If the suggestion is that these
considerations render his failure to make good on his undertaking to
respond by 7 June 2013, or that it was incumbent upon the plaintiff to
drag the defendant to court to ensure compliance with each step
preparatory to trial, then that is rejected.
18.4.3. Whilst it is so that rule 37 does not envisage a formal request to which
there must be a formal reply, 1 the fact remains that Mr Matlou
undertook to respond to the queries and to do so by a certain date. If he
wanted to take a point that the queries should have been contained in a
request for further particulars for trial, or that the request was filed out
of time, thereby prejudicing the defendant in his preparation for the pre
- trial, then he should have done so at the time. In any event, the
purpose of a rule 37 conference is “primarily to curtail the duration of
a trial, narrow down issues, cut costs and facilitate settlements. Parties
are required to attempt, in a bona fide manner, to reach settlement
either on issues which could serve to shorten the proceedings or
resolve the main issues.”2 The queries raised by the plaintiff were
meaningful and required an answer. Nothing prevented the defendant
1 Kriel v Bowels 2012 (2) SA 45 (ECP) 2 Kriel v Bowels supra at [15]
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from calling a further pre – trial conference to ensure a meaningful
discussion of its answers to the questions put by the plaintiff.
19. On 23 July 2014 (more than a year after the delivery of the request) the plaintiff
delivered her rule 35(3) application to compel. The application refers to the fact
that not only did the defendant fail to respond to the rule 35(3) notice of 27 June
2013, it failed to respond to two letters sent by the plaintiff’s attorneys on 1
August 2013 and 30 May 2014 respectively. The defendant did not explain this
lack of responsiveness.
19.1. The defendant’s response to the rule 35(3) application merely has Mr
Macheke claiming, under oath, that he does not have the documents and
that the defendant does not know whether such documents exist in regard to
the plaintiff. Again, a startling manner of dealing with the task at hand.
Clearly, the antenatal and labour records must have existed, especially if
the evidence of both experts as regards medical record keeping is taken into
account. As it happens, we know the documents existed, as the plaintiff
produced them, with the hospital she attended the likely, if not the only,
source of those documents.
20. The trial was set down for hearing on 7 October 2014. On that day the matter had
to stand down as the joint minutes between the experts had not been prepared, for
obvious reasons. In the event the trial could only commence on 9 October 2014.
The failure by the defendant and its representatives to comply with the pre – trial
procedures had the regrettable consequence that two court days were wasted. The
practise directions contemplate, for obvious reasons, that expert reports should be
exchanged well in advance of the trial date. It is of the deepest concern that the
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State Attorney and the defendant’s advisors did not think fit to honour the
rationale for an early meeting between the experts.
C. THE RULE NISI AFFIDAVITS
21. The contents of each of these affidavits are dealt with below in so far as they are
relevant.
Mr Ezekiel Matlou
22. Mr Matlou is an attorney with right of appearance in the High Court. He practices
as an attorney at the offices of the State Attorney in Market Street, Johannesburg.
The State Attorney is the attorney of record for the defendant in this matter.
23. Mr Matlou admits to being “involved in the decision to take this matter to trial”
and his affidavit professes to address the issue of “whether it was unreasonable
for the defendant to have contested the issue of negligence in this matter”.
24. Mr Matlou further addresses various instances where the State Attorney failed to
comply with time periods. These include:
24.1. failure to comply with the plaintiff’s request for further particulars to
the extent that the plaintiff was obliged to obtain a court order
compelling the defendant so to comply;
24.2. failure to file the defendant’s expert summary timeously (it was made
available the Friday before the trial commenced);
24.3. Mr Matlou’s failure to attend at the trial;
24.4. the failure to brief defendant’s counsel properly, such that he did not
have a copy of expert reports.
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25. Mr Matlou argues that the joint minute between Drs van den Heever and
Mashamba “significantly narrowed the issues in this matter”. This is of course,
the precise point of these joint minutes and the very reason why it should be
prepared timeously and not during the time set aside for trial, when expensive
legal teams are waiting in the wings. His view is that the disagreement between
the experts was confined to (1) the impact of early delivery on the outcome and
(2) whether a caesarean section should have been performed as soon as possible
after 12h00. But there is no relevant disagreement between the experts. The
experts agreed that a caesarean section ought to have been done “ASAP after
12h00 most likely with a better outcome”. The only difference is that Dr
Mashamba did not agree that early delivery would have guaranteed a better
outcome but that is not the test. An earlier meeting between the experts would and
ought to have had the effect of having the defendant’s advisors realise this
significant fact.
26. As regards the reasons for the defendant’s opposition to the plaintiff’s claim on
the merits Mr Matlou argues that both Dr Cele and Dr Mashamba were of the
view that the plaintiff was treated reasonably and that the defendant had a good
defence. These are, of course, conclusions. One searches in vain for the reasons
for these conclusions which were reached in the absence of the relevant medical
records. The expert report of Dr Mashamba discloses no defence on the merits.
When I requested Mr Latib during argument to indicate the nature of the defence,
he could not do so. This is not to reflect negatively on Mr Latib. His inability to
do so is due to the absence of a defence. Mr Latib was constrained to submit that
it was not incumbent upon an attorney such as Mr Matlou to question the bald
assertion of experts such as Dr Mashamba that there is a defence. The argument
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was also made that the extent of the plaintiff’s claim of R17 million obliged the
defendant to defend the case, also on the merits. I cannot agree with either
submission. It is certainly essential that attorneys satisfy themselves that the
reasons for an expert opinion support the expert conclusion to ensure that it would
be defensible during trial. Further, the mere fact of a large quantum is no reason to
defend a claim on the merits in the absence of a defence.
27. Mr Matlou explains the failure of an attorney to attend during the trial by him
having to attend, after the first half of the first day of the trial, to “family
commitments as a result of the passing of my uncle” on 10 October 2014. His
absence from court on 9 October 2014 is due to him having to prepare for a matter
which was to be heard on 10 October 2014.
Mr Jabulani Macheke
28. Mr Macheke, a senior legal administration officer employed by the defendant, is
responsible for this matter on behalf of the plaintiff. The Legal Services
department deals with all legal issues relating to the department. Among others, it
requests the head of the institution where the incident in question occurred, to
provide copies of the claimant’s medical records related to the incident. His
affidavit addresses the issues around the consideration or otherwise on the part of
the defendant of the decision to defend the issue of liability. He also describes the
process followed to determine whether the matter should be defended.
29. Upon receipt of the medical records, consultation with the relevant employees
(doctors and nurses) takes place, with the legal administrator, the medico – legal
advisor to legal services (being a qualified medical doctor), the attorney attending
to the matter at the State Attorney and counsel (if available) attending to the
consultation.
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30. Mr Macheke did not deal with or explain his statements under oath that no
medical records were in the possession or control of the defendant in this case, nor
did he explain why or how the consultation could have taken place in any
meaningful manner in the absence of the relevant medical records. One can only
speculate as to the purpose of such a consultation and what reliance could be
placed on what employees said when they did not have the benefit of the relevant
records.
31. The legal administrator instructs the State Attorney but remains involved and is
almost always present at court when the matter proceeds. The MEC is not
involved in the decision to proceed or not.
32. Following the consultation, the medico – legal advisor, the legal administrator and
the Deputy Director General decide whether the matter should be defended or
conceded. The decision is revisited upon receipt of the advice of medical experts.
Again, Mr Macheke did not trouble himself to explain how this was done in this
case in the absence of indispensable documentation. He is, after all, on oath as
stating that neither the defendant nor his (her) attorney “ever had in his
possession, custody or power or in the possession, custody of power (sic) of any
person on his behalf, any documents or copies or extract from any documents
relating to the matter in question in this action other than and except the
documents set forth in the First an Second Schedule hereto.” As I demonstrate
elsewhere, neither the First nor the Second Schedule lists a single medical record.
When specifically asked for the antenatal and delivery records, he went on oath
that he did not know of their whereabouts.
33. As far as this case is concerned, Mr Macheke testifies that Dr Cele, a medico –
legal advisor of the defendant and he consulted with the employees involved in
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this matter at the Charlotte Maxeke Johannesburg Academic Hospital. After
consultation and after further consideration of the facts, a decision was taken to
proceed to defend the matter. Again, it is not explained how this happened in the
absence of the relevant documents nor did he allude to the exact process followed
whereby the decision was reached.
34. Mr Macheke nevertheless persists that his decision that the claim should be
opposed on the merits was an informed one. He states:
“During September 2013, Mr Matlou who was the attorney handling this
matter at the State Attorney, forwarded Dr Mashamba’s report to me. Mr
Matlou, together with counsel, consulted Dr Mashamba in Pretoria. In a
subsequent consultation that I had with Mr Matlou, he indicated that Dr
Mashamaba (sic) was confident that the defendant could successfully defend
this claim. This confirmed Dr Cele and my view that the matter was
defendable.
I therefore fully considered the merits of the case and took a decision to
proceed to defend the matter. I submit that the decision to defend was a
rational and reasonable one. A decision not to defend this matter in light of
the medical opinion would have been patently unreasonable. I would have had
no basis for recommending that defendant settle the claim.
I point out that I do not have any medical expertise. I therefore rely on
medical expert opinion before a deciding (sic) to settle or to proceed to trial.
In this case, I was given medical opinion that clearly supports a reasonable
defence and there was no reason for me not to accept such opinion.”
35. Neither Mr Macheke nor Dr Mashamba were in a position to “fully consider(ed)
the merits of the case”. The defendant only availed itself and its expert of the
neonatal records. A full consideration was not possible in the absence of antenatal
and labour records. The damage to Menzi did not occur after his birth. It occurred
antenatally. Even for a layperson, the facts of this case are not insurmountable.
They are relatively crisp.
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35.1. A foetus needs the oxygen supplied through the wall of the uterus.
When the placenta starts moving away from that life-giving source,
danger lurks. The oxygen supply is threatened. Once a certain
deprivation of oxygen occurs, the damage is irreversible.
35.2. From there the next step is self-evident. The process of the placenta
separating from the uterine wall must not be permitted to continue. The
baby must be gotten out without delay.
36. For this reason it would, as a matter of basic logic, be evident to professional
laypersons, such as attorneys and legal advisors (and much more so for the
medical advisor) that what occurred pre – birth was of the utmost importance.
And yet all three professionals, Mr Matlou, Mr Macheke and Dr Cele, remained
indifferent to the ante natal and labour records. No credence can, regrettably, be
given to the protestations of either Mr Matlou, Mr Macheke or Dr Cele, that the
matter was “fully considered”.
37. Mr Macheke expresses the view that it was appropriate for the defendant to
deliver Menzi two hours and fifteen minutes after the plaintiff arrived at the
hospital. But Dr Jeebodh got Menzi out in just over 30 minutes of her first
encounter with the plaintiff. Dr van den Heever says he needs just over 30 minutes
to get a baby out in an emergency. No action (or omission) that permitted Menzi
to progress to a severely brain damaged state in the care of the hospital could
properly be termed “appropriate”.
Dr Kgopiso Cele
38. Dr Cele is a medical practitioner employed as a medico – legal advisor at the
defendant. He was, with Mr Macheke, involved in the decision taken on behalf of
the defendant to defend the plaintiff’s claim.
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39. Dr Cele provides a similar exposition to that of Mr Macheke of the procedure
followed to reach a decision to defend a claim or otherwise. The same absence of
detail characterises his affidavit.
40. Dr Cele says that, in this case, he and Mr Machele (presumably Macheke)
consulted the employees. Following consideration of what they had to say and
consideration of the hospital record, he recommended that the defendant defend
this claim. His recommendation was based on his assessment of the matter at that
stage. It was influenced by the following factors:
40.1. the plaintiff’s symptoms at 12h00 suggested that she had been bleeding
for an unknown period of time;
40.2. the heart rate was 150 and irregular, with it not being known whether
there were decelerations;
40.3. at 13h00, upon reassessment and the performing of a sonar, it was
found the plaintiff had abruption and a caesarean section was promptly
booked;
40.4. the baby was delivered at 14h20 by caesarean section. The time frame
of 2 hours and 20 minutes after arrival is acceptable and within the
norms and standards of a public hospital. WHO standards recommend
that an emergency caesarean section be done within 45 minutes to an
hour after a decision to perform a caesarean section is made.
Considering that the caesarean was done 1 hour and 20 minutes after
the decision was made, the performing of the caesarean was reasonable
in the circumstances;
40.5. it is unclear when the abruption occurred. Brain damage could have
started at that time. Cerebral palsy is a known sequelae of abruption.
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41. I am perplexed by the above. Dr Cele does not identify the hospital record
considered, but it could not have been the antenatal or delivery records. Antenatal
and delivery facts such as those referred to by Dr Cele are only evident from the
antenatal records which Mr Macheke on behalf of the defendant went on oath to
say he did not have (and which it did not provide to Dr Mashamba). This was both
only in the rule 35(1) and 35(3) applications. I conclude that Dr Cele could not
have been in possession of the antenatal or delivery records and thus he could not
have had access, at the time of decision making, to those facts upon which he now
says he relied to form his opinion.
42. Dr Cele’s statement cannot be relied upon and is unsupported by the facts of this
case:
“I was therefore of the view that based on the sequence of events, the
defendant had a reasonable defence to the claim. In my view the plaintiff was
managed appropriately.
My recommendation to the department was to defend this matter. This
recommendation was bolstered by Dr Mashamba’s view that the defendant
had good prospects of success in the matter.”
43. Had he read the report of Dr Mashamba with any degree of attention, he would
have noticed that Dr Mashamba (1) did not express an opinion on the absence or
presence of negligence (2) listed no reasons for any such opinion and (3) could
not form such an opinion because he did not have the relevant records. I deal with
Dr Mashamba’s report in some detail at a later stage in this judgment.
44. In any event Dr Cele’s exposition of the facts of the case:
44.1. ignores the proven and accepted facts.
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44.1.1. No sonar was performed at 13h00. That only happened around 13h45
when Dr Jeebodh came on the scene.
44.1.2. At 13h00 the recommendation by the attending doctor was that
plaintiff should be reassessed in four hours. Both experts considered
that unacceptable in the joint minute.
44.1.3. No caesarean was booked at 13h00. In any event, “booking” a
caesarean is not what was required. Doing the caesarean is what was
required at 12h00. On that too, both experts were agreed. At the time
she presented at the hospital, the plaintiff’s symptoms were such that
abruption was to be inferred. On that both experts were agreed. That
means that, at 12h00, the diagnosis of abruption should have been
made and the caesarean performed without delay. On that too, the
experts are agreed.
45. I do not speculate on matters or theories not in issue in this case, such as the
capacity of the hospital.
46. Dr Cele’s opinion further:
46.1. ignores, in its entirety, the expert opinion of Dr van den Heever, the
plaintiff’s expert witness. Indeed, it appears that Dr Cele paid no heed
to the opinion of Dr van den Heever in forming his opinion as to
whether to defend.
46.2. ignores the fact that, at 150 bpm, the foetus would not have been brain
damaged and abruption would be at a stage of 1 – 2 % of progression.
This evidence by Dr van den Heever stands unchallenged. His
speculation about whether there were decelerations or otherwise or to
what stage the abruption had advanced by the time the plaintiff arrived
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at the hospital is all irrelevant. The heartbeat of 150 tells us that Menzi
arrived at the hospital with some considerable hope for his condition,
provided the hospital did the necessary without delay.
46.3. provides no explanation for the failure to diagnose the plaintiff at
12h00, when the agreed medical view is that her symptoms were
indicative of abruption and that abruption presents an extreme
emergency.
The MEC
47. Ms Quedani Dorothy Mahlangu testified that, as the Member of the Executive
Council for the Department of Health, Gauteng, she is constrained to rely on the
divisions with her department. In this case this is the Legal Services department,
where a legal administration officer is appointed to handle a specific matter,
working with the department’s medical advisor.
48. Ms Mahlangu is of the view that Mr Macheke and Dr Cele followed established
departmental procedure and that their decision to proceed was confirmed by Dr
Mashamba. It was not for the department, so she says, to have questioned Dr
Mashamba’s view that there was a defence. “To have expected the defendant to
have gone behind the evidence of Dr Mashamba is plainly unreasonable.”
D. EFFECT OF THE EVIDENCE
49. Both the legal advisor, Mr Macheke, and the medico – legal expert, Dr Cele,
claim to have consulted with the employees in question at the Charlotte Maxeke
Hospital with knowledge of the relevant facts, having perused the hospital
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records. Clearly, considering the repeated assertions under oath that the relevant
documents were not to hand and the failure to provide them to Dr Mashamba, they
could not have done so.
50. Not one witness claims to have had any regard to the evidence of the plaintiff’s
expert witnesses, nor to the Liability Bundle, nor do they make any effort to
explain the joint expert report.
51. The heavy reliance placed on the view of Dr Mashamba that there was a defence
to a charge of negligence is unfounded. Dr Mashamba had no access to a single
relevant fact. His report discloses no ground of defence to negligence.
E. SUBMISSIONS ON BEHALF OF THE DEFENDANT
52. Mr Latib, on behalf of the defendant, filed heads of argument on 13 November
2014, addressing the rule nisi issues. This court has already found the defendant to
have been negligent in its treatment of the plaintiff. The issue before it now is
whether the defendant had a rational, reasonable ground on which to base its
denial of negligence and whether its conduct otherwise was such that costs de
boniis propriis should be awarded. Before dealing with the submissions I note that
Mr Latib was not the counsel appearing for the plaintiff at the trial and that he did
not have the benefit of a full transcript of the proceedings. My comments in this
case, in so far as they criticise the defendant’s case, are not to be read as a
criticism of Mr Latib.
53. The defendant submits that the decision to defend the claim was reasonable,
rational and proportional. That this decision was taken in ignorance of the relevant
facts is not addressed.
54. The defendant now accepts that the plaintiff presented at 12h00 with symptoms
such that a diagnosis of abruption placentae had to be excluded. It also accepts
22
that an abruption constitutes an emergency. Its case is that its employees, having
regard to their qualification and experience, acted reasonably in arriving at the
diagnosis of abruption and performing the caesarean section when it did. The
defendant, however, presented no evidence to support any defence that the
diagnosis could nor should not have been made when the plaintiff presented at the
MOU. No evidence was led as to the qualification or experience of any employee
other than Dr Jeebodh.
55. The defendant submits further that it is clear from the evidence that Dr Manga did
not have the skill to perform a caesarean section or an ultrasound. But no such
evidence was led. Indeed, the evidence was that certain interns are authorised to
perform caesareans but that one did not know whether Dr Manga was one. The
submission is, accordingly, unfounded. Inferences about her conduct and failure to
act cannot be drawn in favour of the defendant where she was available to testify
and not called. Equally unfounded is the submission that Dr Manga “plainly
treated the plaintiff’s condition as an emergency” in circumstances where she
suggested the plaintiff’s condition be reviewed in four hours, did not apply a drip,
did not apply a CTG and did nothing but prescribe analgesics.3 Both experts noted
that to be unacceptable.4
56. Mr Latib acknowledges the following, as he was duty bound to do based on the
facts of this case:
“It is plain that the plaintiff’s presenting symptoms at 12h00 were indicative of
an abruption and provided the plaintiff was seen by a doctor, urgent steps
were required to diagnose and treat the abruption.”5 [own emphasis]
“Had Dr Manga seen the plaintiff at 12h00, she surely would have suspected
an abruption and acted with the necessary urgency.”6
3 [25] of defendant’s heads 4 [25] of defendant’s heads 5 [27] of defendant’s heads
23
57. I fail to comprehend why this admission (which is consistent with the logic of the
facts of this matter) on behalf of the defendant should not be the end of this
enquiry. Clearly the defendant agrees that the plaintiff presented, objectively
speaking, with an emergency. The defendant can surely not reasonably suggest
that its failure to deal with an emergency presented to it excuses its failure to deal
with the emergency. Emergency medical care provided by the defendant should
not be a lottery.7 It is for the defendant to ensure that such care be provided to
members of the public such as the plaintiff and her unborn son. I repeat that the
defendant advanced no reasons to defend its failure to do so and no basis to
theorise about its failure exists.
F. DEFENDANT’S BLIND RELIANCE ON DR MASHAMBA
58. As regards the defence of the defendant’s blind acceptance of the opinion of Dr
Mashamba that it had a defence of negligence, the following must be noted.
59. Dr Mashamba’s expert report which was, according to the defendant, provided to
it in September 2013, consists of just more than one page. It could easily be fit
into one typewritten page with smaller typescript.
60. The report notes that only the neonatal records were supplied. That ought to have
been enough to have Messrs Matlou and Macheke and Dr Cele supply their expert
with the records (which they had) to ensure a meaningful report. During his
evidence in chief Dr Mashamba confirmed that the hospital records he received
“were deficient of the antenatal card and the deliveries”.8
61. Because of the importance (and brevity) of the report, I quote its contents in full:
6 [27] of defendant’s heads 7 Section 27(3) of the Constitution should not be forgotten. 8 Mashamba p6 lines 10 - 18
24
EXPERT opinion on Vuyisile Eunice Lushaba
Documents supplied was (sic) only the neonatal records. Unfortunately there are no antenatal
records supplied.
Neonatal records
Vuyisile was admitted at the Johannesburg hospital with a problem of abruption placenta and
delivered Menzi on the 30th June 2000 who had APGAR score of 4/10 after 1 minute and 8/10
after 10 minutes by caesarean section. The birth weight was 2860g at an estimated gestational
age of 35 weeks.
At birth Menzi had birth asphyxia with severe metabolic acidoisis and hypoxic ischaemic
encephalopathy [HIE]. By day 7 of life Menzi had developed fits and was on treatment.
Cranial sonar done on day 7 of life revealed findings suggestive of early atrophy. The decision
to repeat after 1 week was taken. Menzi was unable to sit at 7 months of age and a diagnosis
of Cerebral Palsy was emphasized.
Summary of report supplied
Menzi’s mother delivered at the Johannesburg hospital by caesarean section because she had
abruption placenta. Menzi was born with asphyxia with severe metabolic acidosis and
developed HIE.
Comment
Abruption placenta is a serious complication during pregnancy and occurs when the placenta
separates from the uterine wall. It puts both the mother and the fetus (sic) in danger. It leads to
deprivation of the fetus (sic) of oxygen and an lead to Cerebral palsy. Perinatal mortality was
found to be 119 per 1000 births with Abruption placenta compared with 8.2 per 1000 among
other births and this is a 25 – fold higher mortality with Abruptio placenta. [Cande V Ananth,
Allen J Wilcox: Am J Epidemiology vol 153 no 4 2001: Placental Abruption and perinatal
mortality in the United States]. Abruption placenta was responsible for Cerebral palsy in one
quarter of all cases determined to be due to antenatal and/or intra – partum hypoxic conditions
[Yamada T, Yamada T, Morikawa M, Minakami H; Early Hum Dev. 2012Nov;88{11}:
Clinical features of Abruptio placenta as a prominent cause of Cerebral palsy].
Conclusion
With such serious complications following Abruptio placenta the outcome of Menzi is
strongly associated with the complication that he mother had just before delivery.
Dr T J Mashamba
62. Apart from telling the reader that Menzi Lushaba had cerebral palsy and that this
is an extremely serious condition which results from abruption placenta, the report
is, as an expert opinion, meaningless. No basis is established on which
defendant’s negligence is to be disputed unless one is to accept that abruption is
25
fatal the second it sets in and that nothing is to be done about it, but that is not
what the statistics quoted by Dr Mashamba suggest.
63. An expert’s opinion
“represents his reasoned conclusion based on certain facts or data, which are
either common case, or established by his own evidence or that of some
competent witness. Except possibly where it is not controverted, an expert’s
bald statement of his opinion is not of any real assistance. Proper evaluation
of the opinion can only be undertaken if the process of reasoning which led
to the conclusion, including the premises from which reasoning proceeds,
are disclosed by the expert.”9 [own emphasis]
64. The defendant submits as follows.
64.1. Dr Mashamba, having not been briefed with all the records, was
unaware that the plaintiff commenced her interaction with the hospital
in the MOU and that a diagnosis of abruption was made only at 13h45.
His agreement to the joint minute was, accordingly, based on incorrect
facts.10
64.2. “If the plaintiff was in the labour ward at 12h00, she would already
have been under the care of medical doctors. There would therefore
have been no reason not to have arrived at a speedy diagnosis of an
abruption and not to have performed a caesarean section urgently.”11
64.3. Therefore Dr Mashamba should not be held to his agreement in the
joint minute that the caesarean should have been performed as soon as
possible after 12h00.12
9 Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft fur Schadlingsbekampfung MbH 1976 (3) SA 352
(A) 10 heads of argument [33] 11 Heads of argument [38] 12 Heads of argument [39]
26
65. Some point is sought to be made in the heads that the defendant was not permitted
to file affidavits beyond those of 27 October 2014. The claim appears to be that
Dr Mashamba could then explain how he arrived at a conclusion based on an
incomplete knowledge of the facts. But the explanation was known during the trial
and is evident from Dr Mashamba’s report. He was in possession only of the
neonatal records. He only received a copy of Dr van den Heever’s report when the
joint minute was made.13 One does not comprehend how he purported to provide
an opinion on negligence in the absence of those records. They were vital to the
opinion of Dr van den Heever and are vital to the question of negligence.
66. The defendant argues, finally, on this point that, if it were accepted that its expert
did not agree that a caesarean section should have been performed after 12h00,
then it follows that the order for the defendant to provide submissions on whether
it had a duty to interrogate its experts opinion that the defendant had a defence,
falls away. The defendant had “a perfectly reasonable defence” to the plaintiff’s
claim. 14 This argument forgets that Dr Mashamba had no knowledge of the
plaintiff’s presence at the MOU at the time that the decision to litigate was made.
The issue is, in any event, irrelevant. The plaintiff was at the hospital, presented
with an emergency, and ought to have been treated as such.
67. The effect of the discovery by Dr Mashaba that the plaintiff started off at the
MOU is in any event murky. There was no suggestion during his examination in
chief that he was retreating from the joint minute. Most importantly, Dr van den
Heever’s evidence on the effect of the heart rate was not touched upon. The
clearest evidence by Dr Mashamba on the MOU issue is the following
qualification of his admission that abruption is a medical emergency: “Ja, what I
13 Mashamba p7 lines 19 - 22 14 Heads of Argument [41]
27
wanted to say is that it depends on where the patient is. You make a diagnosis
then depending on where the patient is, if the patient is in a place where they
cannot even do what was supposed to be done in the referral centre you cannot
say they should have done it.”15 But Dr Mashamba did not know the MOU at this
particular hospital and did not know what it could and could not do. Clearly the
MOU recognised a problem and sent the plaintiff to a higher level of care.
When specifically asked in cross – examination to comment on the recorded
agreement in the joint minute that the caesarean should have been done as soon as
possible after 12h00 he said: “Ja, because we thought the (diagnosis of) abruptio
was made. If the abruption was made but here it was missed in the beginning.16 …
So you have changed your view? No we say … Do you now believe that there was
no requirement of the caesarean section as soon as possible after 12:00? No, I am
looking in the context of what we have here and I had indicated that the first time
at 12:00 the patient (was) at MOU. MOU do not even have caesarean section
facilities let us start there right. So when we drew this it was in that context that
this was in hospital. Now I have got even a better view or knowledge to say this
was MOU not the hospital.17 …Is it still your view that a caesarean section should
have been done as soon as possible after 12:00? Yes if the diagnosis was
made18….That is fine, so its is still your view that a(s) caesarean section should
have been done as soon as possible after 12:00? Yes but it does not guarantee the
outcome.19 …Yes Doctor yes you have made very clear but what you said was
most likely with a better outcome? Ja20. … But you agree with me that the child’s
15 Mashamba pp35 – 36 lines 21 - 1 16 Mashamba p75 lines 21 - 24 17 Mashamba p75 line 25 – p76 line9 18 Mashamba p77 lines 2 - 4 19 Mashamba p77 lines 13 - 15 20 Mashamba p77 lines 16 - 22
28
prospect would have been so much better if the caesarean (was) done two hours
earlier? Without guarantees yes.”21
67.1. Dr Mashamba did not know whether there was a doctor at the MOU.22
67.2. Once a diagnosis is made, it must be acted upon accordingly.23
67.3. The diagnosis of abruption was made at 13h45.24
67.4. Abruption is a medical emergency.25
G. COSTS DE BONIIS PROPRIIS?
68. These costs are not easily awarded. They are awarded when there is “negligence
in a serious degree”.26 It has also been stated that such costs are awarded for
conduct which substantially and materially deviates from the standard expected of
the legal practitioner, such that his clients, the actual parties to the litigation,
cannot be expected to bear the costs, or because the court feels compelled to mark
its profound displeasure at the conduct of an attorney in any particular context.
Examples are dishonesty, obstruction of the interests of justice, irresponsible and
grossly negligent conduct, litigating in a reckless manner, misleading the court,
and gross incompetence and a lack of care.27
69. The authorities caution that cost orders de bonis propriis should only be awarded
in exceptional circumstances.28 A legal advisor or legal representative is not to be
21 Mashamba p79 lines 20 - 23 22 Mashamba p38 lines 19 - 21 23 Mashamba p34 lines 13 - 15 24 Mashamba p39 lines 18 - 19 25 Mashamba p45 lines 24 - 25 26 South Africa Liquor Traders Association v Chairperson, Gauteng Liquor Board 2009 (1) SA 565
(CC) [54] 27 Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd; Telkom SA Soc Limited
and another v Blue Label Telecoms Limited and others [2013] 4 All SA 346 (GNP) at [35] 28 For an example where costs de bonis propriis were awarded against an attorney in the office of the
State Attorney see Tasima (Pty) Ltd v Department of Transport and Others 2013 (4) SA 134 (GNP).
See also, by way of analogy, Hai Lin and Weng v Minister of Home Affairs (the Cathay Pacific
29
punished with such a cost order for every mistake or error of interpretation. To err
is, after all, human.
70. But there is a limit. That limit is, to my mind, crossed when one encounters the
degree of indifference and incompetence evidenced in this case. Erring when
trying to do one’s work well is one thing. Not even caring about doing so is quite
another. The public should not have to suffer this complete indifference and
incompetence at the hands of public servants. In 1902 Innes CJ thought that it
would be detrimental to the public service to “mulct that official in costs where his
action or his attitude, through mistaken, was bona fide”.29 But circumstances
appear to have changed with not even censure from our highest courts being
sufficient to induce public officials to public minded service. Something is
required to so induce them. Perhaps the answer lies in greater accountability.
71. The MEC herself has stated that she is not personally involved in the decision-
making. I am not convinced that she is to be held personally liable for the costs
herein.
72. The required exceptional circumstances are present in this case where three
professionals – two lawyers and one medical practitioner: -
72.1. claim that they considered the merits of a case despite being unable to
do so because they were, on their own version under oath, not in
possession of the necessary records;
72.2. evidently paid no regard to the expert report of the plaintiff, nor to the
relevant documents that were provided with the Liability Bundle;
72.3. failed to provide their chosen expert with access to the relevant facts;
judgment of Spilg J) delivered on 11 November 2014 in case no 2014/22434 in the GLD,
Johannesburg. 29 Coetzeestroom Estate and GM Co v Registrar of Deeds 1902 TS 216 and see Absa Bank v Robb
2013 (3) SA 619 GSH at [14]
30
72.4. failed to ask their expert to comment on the plaintiff’s expert report;
72.5. were content to rely on a one page “report” that disclosed no basis for
any defence;
72.6. were content to rely on bald, unsubstantiated, assertions by the expert;
72.7. permitted the litigation to continue in circumstances where (1) no
defence is exhibited in the report of their expert (2) no defence was
pleaded (3) no defence was advanced at trial and (4) they were
unaware of any defence to negligence;
72.8. were reckless as to the facts of this matter.
73. To this must be added an inert approach to pre – trial litigation. Not one time
period was promptly complied with. Court time was wasted because the expert
report was only provided the Friday before trial. The indifference as to time
periods, as well as the contemptuous approach to discovery on the part of Messrs
Matlou and Macheke, creates an impression of intolerable incompetence and
reckless disregard. When the bizarre approach to discovery is added into the mix,
one wonders whether one has stepped into an altered reality.
74. The failure to attend adequately to matters concerning preparation for trial on the
part of Messrs Matlou and Macheke is, in my mind, enough of a departure from
accepted norms of professional conduct to hold them personally liable for the
costs of this matter. It matters not that Mr Macheke is not assisting the defendant
as an attorney. He is a legal advisor in the legal department of the defendant and
should concern himself adequately with matters allocated to him. This includes
ensuring that proper discovery occurs, among others.
75. To this must be added the failure of the three advisors (Messrs Matlou and
Macheke and Dr Cele) to obtain the necessary records which would have enabled
31
them to consider the merits and to brief the expert with the relevant documents to
enable him properly to consider the matter, a failure representing “negligence in a
serious degree”30 and the necessary “exceptional circumstance”.31 This failure led
the defendant to defend a claim on negligence where it had no defence.
76. Neither an attorney nor an official such as a legal advisor or medico – legal
advisor is a rubber stamp or conveyor belt with his sole function that of conveying
instructions and documents to expert witnesses and counsel. Indeed, as Kotze J
said in Port Elizabeth Local Road Transportation Board and Others v Liesing32
concerning the obligatory service of heads of argument
He (the attorney) would, I consider, fail in his duty to his client if he did not peruse both sets
of heads of argument and direct his mind to the implications thereof and to the question
whether his client's interests are fully protected by the submissions intended to be put forward.
The work of preparation is that of the attorney that of presentation is the function of the
advocate. They operate side by side, their functions differ in kind but they are complementary
to each other. The lay client has the right to expect and to insist upon their joint efforts in the
conduct of all aspects of litigation including the presentation of appeals. The heads of
argument are required by Rule of Court to be served and are therefore documents of
fundamental importance in all appeals to the Full Court. It will in my view be entirely wrong
for an attorney not to accord the heads of argument the diligent attention which he accords
other documents of fundamental importance.
77. Attorneys who file pleadings have a duty to satisfy themselves that evidence
would be available to substantiate the contents of the pleading.33
78. The three advisors/representatives are professionals who are, on their own
version, charged with making important decisions.
78.1. Those decisions should be made consciously and after due
consideration.
78.2. The decisions can only be made on the strength of the relevant facts
which, in this case, required the antenatal and labour records. As the
evidence showed, if something is not written down in medicine, it did
30 South Africa Liquor Traders Association v Chairperson Gauteng Liquor Board 2009 (1) SA 565 CC
at [54] 31 Thunder Cats Investments 49 (Pty) Ltd v Feton 2009 (4) SA 138 (C)at [60] 32 1968 (4) SA 401 (E) 33 Knight v Findlay 1934 NPD 185
32
not happen. These records were essential to a proper consideration of
the merits. The defendant argues that it could not be required to
interrogate its expert. I do not agree. In the first instance, the defendant
should have enquired into the basis on which Dr Mashamba held the
view that it was not negligent. It that basis did not exist or was, for
example, irrational, it could not logically assist the defendant. No basis
for the conclusion as to absence of negligence is evident from Dr
Mashamba’s report. He could not logically have supplied such a basis
during the pre – trial consultations, as he was not in possession of the
relevant evidence.
78.3. In these circumstances the decision to defend the claim on negligence
was reckless. This much was evident from the complete agreement
between the experts on all the relevant issues. A conscientious dealing
with the facts of the case would have led to the joint minute being
produced in time to avoid the cost of the trial.
79. My views on the degree to which Messrs Matlou and Macheke and Dr Cele failed
to comply with their duties are fortified by a consideration of the duty on the state
as litigant.
H. THE DUTY ON THE STATE IN LITIGATION
80. The state should not conduct a case as if it were at war with its own citizens,
especially not against those who are “in terms of secular hierarchies and affluence
and power the least in its sphere.”34
34 Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza 2011 (4) SA 1184 SCA at
[15]
33
81. It should certainly not litigate in a manner calculated to deprive persons such as
Mrs Leshaba of her right of access to court because of its refusal to adhere to the
rules regarding pre – trial preparation. From the fact that she attended at a state
hospital, I deduce that the plaintiff is probably not a wealthy woman. This, to my
mind, heightens rather than lessens the obligation of the defendant towards her.
She should be entitled to more than the indifference that met her in each encounter
with the state and provincial structures in this case. 35 “All this speaks of a
contempt for people and process that does not befit an organ of government under
our constitutional dispensation.”36
82. In this case the defendant had consistently to be dragged to comply with the
simplest requests and even then it could not interest itself in this case. The
defendant’s denial of being in possession of relevant medical records and its
failure to provide Dr Mashamba with those provided by the plaintiff speaks
volumes.
83. As Plasket J stated in Mlatsheni v The Road Accident Fund37 (the footnotes to the
extracts from this judgment are included)
[14] From these provisions, and a reading of the Act as a whole, it is not open to doubt that the
defendant is an organ of State.38 That being so, it is bound by the Bill of Rights39 and is under
an express Constitutional duty to ‘respect, protect, promote and fulfil the rights in the Bill of
Rights’.40 This means not only that it must refrain from interfering with the fundamental rights
of people but also that it is under a positive duty to act in such a way that their fundamental
35 Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza 2001 (4) SA 1184 (SCA) at
[12]: It is the needs of such persons, who are most lacking in protective and assertive armour, that the
Constitutional Court has repeatedly emphasized must animate our understanding of the Constitution’s
provisions. 36 Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza supra at [15] 37 Case 418/2005 ECD 38 Section 239 of the Constitution defines an organ of state to include an institution that exercises a
public power or performs a public function in terms of any legislation. 39 Constitution, s 8(1). 40 Constitution, s 7(2).
34
rights are realised. 41 Furthermore, s 237 of the Constitution requires that all of its
constitutional obligations ‘must be performed diligently and without delay’.
[15] By frustrating the legitimate claim of the plaintiff in the way that I have described, the
employee of the fund who gave Mr Mvulana his instructions has acted in violation of the
Constitution: he or she has by unjustifiably frustrating the claim of the plaintiff, failed to
‘protect, promote and fulfil’ his fundamental rights to human dignity, 42 to freedom and
security of the person and to bodily integrity.43 This employee has also fallen short of what is
expected of public administrators by s 195 of the Constitution in that it cannot be said that the
irresponsible raising of a frivolous defence promotes and maintains a high standard of
professional ethics or that it promotes the ‘[e]fficient, economic and effective use of
resources’. It cannot similarly be said that he or she has performed the constitutional
obligations owed to the plaintiff diligently.
[16] Organs of state are not free to litigate as they please.44 The Constitution has subordinated
them to what Cameron J, in Van Niekerk v Pretoria City Council,45 called ‘a new regimen of
openness and fair dealing with the public’. The very purpose of their existence is to further the
public interest and their decisions must be aimed at doing just that. The power they exercise
has been entrusted to them and they are accountable for how they fulfil their trust.
[17] It is expected of organs of state that they behave honourably – that they treat the
members of the public with whom they deal with dignity, honestly, openly and fairly. This is
particularly so in the case of the defendant: it is mandated to compensate with public funds
those who have suffered violations of their fundamental rights to dignity, freedom and
security of the person, and bodily integrity as a result of road accidents. The very mission of
the defendant is to rectify those violations, to the extent that monetary compensation and
compensation in kind is able to. That places the defendant in a position of great responsibility:
its control of the purse-strings places it in a position of immense power in relation to the
victims of road accidents, many of whom, it is well-known, are poor and ‘lacking in protective
and assertive armour’.46 In this case, the employee who gave Mr Mvulana his instructions has
abused his or her position of power.
84. The state should not litigate in a way designed to undermine a litigant’s right of
access to court in terms of section 34 or, for that matter, any other of her rights.
Inertia and lethargy on the part of the state could run up costs such that less
41 Jafta v Schoeman and others; Van Rooyen v Stoltz and others 2003 (10) BCLR 1149 (C), para 39; S
v Z and 23 Similar Cases (No. 2) 2004 (2) SACR 410 (E), para 3. 42 Constitution, s 10. 43 Constitution, s 12. 44 MEC for Roads and Transport and others v Umso Construction (Pty) Ltd CkHC undated judgment
(case no. 2034/05) unreported; MEC for Roads and Public Works, Eastern Cape and another v
Intertrade (Pty) Ltd 2006 (5) SA 1 (SCA), paras 20-21. 45 1997 (3) SA 839 (T), 850B-C. 46 Permanent Secretary, Department of Welfare, Eastern Cape and another v Ngxuza and others 2001
(4) SA 1184 (SCA), para 12.
35
wealthy litigants, unable to afford the multiple applications required to compel a
response from the state and bring the matter to trial, are compelled to withdraw.
85. Not only were costs unnecessarily incurred by the plaintiff by the various steps
required to get the State Attorney to respond, but the taxpayer’s money is wasted
each time the State Attorney and public service lawyers fail to comply with time
periods and Rules of Court.
I. COURT PRONOUNCEMENTS ON THE STATE ATTORNEY and PUBLIC
OFFICIALS
86. Cost orders de bonis propriis against State Attorneys and public officials are
drastic measures. These functionaries should not be terrorised and paralysed into
not doing their jobs by the fear that every little error could be met by the extreme
sanction of a personal cost order.
87. But we are not faced with an error in this case, be it an error of interpretation or
judgment or even an oversight. We are faced with state employees who could not
be bothered to do their work.
88. Such incompetence undermines the Constitution and, with it, the social contract
underlying it. Our Constitutional Order was not arrived at easily. One might argue
that we have been fighting for this for a number of millennia. It cannot be
permitted to die with a whimper, sunk away under a swamp of slothful
indifference. Drastic measures are called for to turn the tide. If personal
accountability among public officials does not come naturally it must be
inculcated. Somehow these officials must be taught that their actions (or lack
thereof) have consequences; that what they do matter. Somehow they must be
36
conditioned to care such that a Vuyisile Eunice Lushaba, in the midst of a physical
crisis, could expect to enter a provincial hospital and receive the best possible
care; the kind of care that committed service produces. And when mistakes are
made (as they inevitably will be) then there must be the courage and intellectual
honesty not to lie to her, not to threaten her right of access to court by foot
dragging and further incompetence; not to further insist that she was not entitled
to emergency medical treatment in circumstances where the facts have no patience
with such mendacity.
89. I observed the plaintiff, a far from hefty, young woman, carry her fourteen year
old son out of court on her back. She did not have a wheel chair in court. During
the court proceedings she had to cradle him in her arms because, paralysed as he
is, he could not sit by himself. This is symbolic of the destruction wrought by the
callous, incompetent indifference on the part of public officials inflicting South
Africa at the moment. The plaintiff and her son deserved much better.
90. An analysis of only a few of the judgments dealing with the conduct of public
officials over the course of the past 6 years or so reveal that shaming public
officials no longer work. Even the strongest exhortation of our highest Courts falls
on deaf ears. I include some extensive quotations from a number of authorities in
the hope that the State Attorney and defendant’s legal department study them with
care.
91. Tuchten J in 2013 in Tasima (Pty) Ltd v Department of Transport and Others47:
36. I deprecate strongly the conduct of Ms Lithole as disclosed in her own affidavits before us
and the correspondence admittedly sent and received. Her conduct seriously prejudices the
administration of justice. Even more importantly, the dysfunctionality to which she refers
47 2013 (4) SA 134 (GNP)
37
demonstrates that the office of the State Attorney, Pretoria, an important organ of state, is
presently unable to comply with its constitutional and statutory obligations.
37. To take but one, very important, function of the State Attorney: under rule 4(9), service of
court process on the State and on ministers and deputy ministers in the national government as
representative of the departments which they head may legitimately take place by service on
the State Attorney. If that office is dysfunctional, a court cannot be confident that the process
in question has come to the attention of responsible officers within the department concerned.
Indeed, the experience of each of the members of this full bench has been that frequently and
most disturbingly, civil litigation against the State in this division is allowed to go by default.
38. Under s 1(1) of the State Attorney Act, 56 of 1957, the several offices of the State
Attorney are under the control of the Minister of Justice. This court too is an organ of state
and subject to the duties under s 41 of the Constitution. With this in mind, it is appropriate
that, as foreshadowed in argument, both the Minister of Justice and the parliamentary
portfolio committee for justice be provided with copies of this judgment. In my view, too, the
Law Society of the Northern Provinces should be sent a copy of this judgment with the
request that the Law Society investigate the conduct of Ms Lithole and the office of the State
Attorney, Pretoria, as disclosed in this judgment and the papers in the postponement
application. I emphasise that while I consider the conduct of Ms Lithole, as disclosed in her
own affidavits, to be worthy of censure, the primary purpose in publicising this judgment in
the way described is to prompt those in a position to do so to ensure that the office of the State
Attorney, Pretoria, fulfils its important constitutional and statutory obligations.
92. Van Oosten J in 2012 in The Minister of Safety and Security v G4S International
UK Ltd:
[13] …No explanation has been tendered for the State Attorneys’ inaction. The matter was
initially entrusted to Mr Rambau, who at the time was the senior assistant state attorney
employed at the office of the State Attorney in Johannesburg. … For reasons that have not
been explained, Rambau plainly ignored and in fact abandoned his duties as the legal
representative of the Minister. A long line of notices, requests, warnings and even court
orders were simply disregarded and not attended to.
[14] … Counsel for the Minister urged me to have regard to the nature of the attorney client
relationship which exists in legal matters concerning the State. Organs of state are obliged to
avail themselves of the services of the State Attorney (see s 3 of the State Attorney Act 56 of
1957). State departments, such as the SAPS, do not have the free choice of instructing a
particular legal representative or the right enjoyed by private litigants of terminating the
mandate of one legal representative and instructing another. The SAPS is therefore bound to
accept that all legal matters, such as the present, will be dealt with the State Attorney.
Underpinning this particular relationship, in my view, is the trust placed by not only the
SAPS, but other state organs, in the State Attorney to properly fulfil its mandate. But it goes
38
further: the taxpayer also has an interest in these matters, as public funds are at risk in matters
where damages against the Minister are claimed. It cannot, generally speaking, be expected
from members of the SAPS to regularly monitor the State Attorney’s management of legal
matters in which they are or may be involved. In most instances members of the SAPS would
not even be aware of the pending litigation as service of the documents commencing legal
proceedings, can and is effected on a representative of the Minister, including the office of the
State Attorney. These matters are accordingly left entirely in the hands of the State Attorney
who is required to perform their duties with the utmost diligence.
[15] At this juncture I consider it necessary to digress and to address the alarming neglect of
duty by the State Attorney that appears to have become the order of the day in this division. I
will confine the comments I am about to make to cases involving the State Attorney that have
served before me in the last few weeks. A number of applications for default judgment against
the Minister appeared on the unopposed motion court roll. In those matters the summons had
been properly served on the State Attorney, on behalf of the Minister. Those cases all
involved claims for an alleged wrongful arrest and detentions by the SAPS. In the absence of
a notice of appearance to defend by the State Attorney, they were enrolled on the unopposed
motion court roll, for default judgment. At the last moment when the matters were called in
court, an appearance from or on behalf of the State Attorney’s office was made resulting in a
postponement and, of course, unnecessary wasted costs. No explanation was tendered for the
State Attorney’s non-entry of an appearance to defend, the plaintiffs always content with a
suitable costs order in their favour. This kind of neglect, regrettably, permeated into a large
number of unopposed matters appearing on another section of the motion court roll:
applications against the Minister to compel discovery of documents or compliance with some
other notice delivered in terms of the rules. Again, the notices requesting discovery were duly
served on the State Attorney, but the lack of compliance, despite despatch of a “courtesy
letter” again demanding compliance, caused them to be launched. In one week 12 such
matters served before me. At the hearing there was an appearance by or on behalf of the State
Attorney. I was informed that all those matters had become settled in respect of which draft
orders were handed up for confirmation albeit without any explanation for the reason for the
non-compliance. The draft orders all provided for payment of the costs of the applications by
the Minister. In the present matter, as I will deal with later, a further costs order against the
Minister, is about to follow. These all provide examples of the unnecessary waste of public
funds due to deteriorating standards of service and the absence of diligence.
[16] The instances of neglect and the general decline in the standards of service rendered by
the State Attorney’s office, is a matter of grave concern which needs to be addressed. It cannot
be allowed to endure any longer. An urgent in-depth investigation by the authorities
concerned, in my view, is necessary. In order to set the process in motion I have decided to
cause a copy of this judgment to be forwarded to the Minister of Police, as well as the
Minister of Justice and Constitutional Development. It is hoped that the flashing red warning
lights which are apparent from what I have set out above, will encourage an investigation and
39
correction where necessary, in order to rectify a state of affairs that is not conducive to the
delivery of justice by a well-established legal service provider in the public sector. 48
93. In 2005 in Kate v MEC for Department of Welfare, Eastern Cape Froneman J
expressed the view that
Individual public responsibility, in contrast to nominal political responsibility, could be
enhanced by forcing individual public officials to explain and account for their own actions,
as parties to the litigation.49
94. Bertelsman J in 2014 in Minister of Rural Development and Land Reform v Griffo
Trading CC; In Re: Griffo Trading CC v Minister of Rural Development and Land
Reform :50
41.lt is clear that the applicant department has been exceptionally poorly served by the legal
representatives it is obliged to employ in terms of section 3 of the State Attorney Act, 56 of
1957. Nothing has changed since the court drew the completely unacceptable level of service
delivery in the S A’s office to the attention of the responsible authorities in the above
quotation. The litany of failures evident in this case, to attend to the most elementary of
administrative duties in an attorney’s office, such as diarising files, observing deadlines set by
the Rules and orders of court, protecting the integrity of files and of original documents
entrusted to officers of this court by their clients’ officials reflects the same chaotic state of
dysfunctionality that attracted the full court’s severe criticism. To this must be added the
failure to render a professional service to the department and the court, the unacceptable
excuses proffered for failing to protect the litigant’s interests and the unprofessional manner in
which pleadings and affidavits were prepared. In addition it is clear that the SA’s explanations
and excuses for the repeated failures to comply with the duties of officers of this court fail to
identify the individuals responsible for some of the worst neglects. There can be little doubt
that this failure is deliberate to shield the attorneys concerned from being held personally
liable for the costs incurred as a result of their misconduct. This court has had to express its
disquiet over the generally very poor quality of work delivered by the S A’s office in this
Division on more than one occasion since the Tasmina judgment was delivered. (See, for
instance, Central Authority for the Republic of South Africa v R [2014] ZAGPPHC 19 (not yet
reported). Punitive costs orders have been granted against the SA’s clients on numerous
48 case 07/12735 South Gauteng High Court at [13] 49 2005 (1) SA 141 SE at [11] 50 (12440/11) [2014] ZAGPPHC 666 (2 September 2014)
40
occasions as a direct result of the failure of its officials to perform their professional functions.
It is a matter of very grave concern that nothing our courts have said appears to have been
heeded by the Minister or the Department of Justice and Correctional Services. Courts cannot
function effectively without the professional support of its attorneys and advocates. The State
Attorney is involved most of the litigation affecting the State and is funded by the public
purse. The present condition of this office causes significant unnecessary expenditure of
public funds that are wasted by costs orders granted against organs of state because of the
poor quality of professional service provided by these officers of the court. Eventually the
very essence of the Rule of Law is endangered if regular litigants fail to observe the most
basic principles that protect the independence and quality of justice dispensed by our courts. It
is high time that this malaise is addressed.
53.The court would have made an order holding the individual officers of this court employed
by the SA liable if they had been properly identified. It is beyond question that Mbata was
negligent to a very high degree, but it appears also to be common cause that she was on leave
and on medical leave during critical periods when the matter was not given attention. It is
unclear who was responsible for losing the applicant’s file and original documents. The failure
to identify these individuals appears to be deliberate to avoid the consequence of having to
personally recompense the public purse for the waste of taxpayers’ money because of the
responsible attorneys’ unprofessional conduct. The court can but express the hope that the
authorities will take appropriate action against the delinquent individuals. A copy of this
judgment will be sent to the Hon Minister of Justice and Correctional Services and to the
chairperson of the Parliamentary Portfolio Committee on Justice for their information.
95. Yacoob J in 2008 in Njongi v MEC, Department of Welfare, Eastern Cape:51
[84] The decision not to admit the unlawfulness of the administrative action in the
circumstances cannot be said to be unobjectionable. In particular, it must be said that judgments
of courts in relation to Provincial Government conduct are not meant simply to be filed away
without being read. They contain important information that has a bearing on the conduct of the
Provincial Government in issue. It is probable that the legal advisors to the Provincial
Government did not read the various judgments which are referred to in this judgment with
sufficient care. If they did read them however their conduct is worse. Court judgments were
ignored by these lawyers. This is unsatisfactory.
[85] It is not necessary in this case to decide whether the decision of the Provincial Government
to invoke prescription was of such a nature that it can or ought to be set aside. That is because the
defence of prescription has in any event failed. I am however of the view that, as appears from
what I have said earlier, both the decision to oppose as well as the way in which the case was
conducted represent unconscionable conduct on the part of the Provincial Government. I do not
51 2008 (4) SA 237 (CC)
41
need to decide whether the fault lay with the legal advisor, an official in the Department, a political
office bearer or with all of them.
96. Meer J in the Land Claims Court in 2010 in Quinela Trading (Pty) Ltd v Minister
of Rural Development:52
[36] Nyathi v MEC for Department of Health, Gauteng and Another [2008] ZACC 8; 2008 (5)
SA 94 (CC) reconfirmed the constitutional principles regarding the duty of government in
respect of public administration. The same principles are applicable to the state’s duty to
comply with its contractual and statutory obligations. In Van der Merwe & Another v Taylor
N.O. & Others [2007] ZACC 16; 2008 (1) SA 1 (CC) at 27 it was acknowledged that the
constitutional principles are basic values for achieving a public service envisaged by the
Constitution, which required the state to lead by example. As in that case the state has failed
to lead in the present case. In the earlier case of Mohamed and Another v President of the RSA
& Others [2001] ZACC 18; 2001 (3) SA 893 (CC) at [68] the Court endorsed the celebrated
words of Justice Brandeis in Olmstead et al v United States11:
“In a government of laws, existence of the government will be imperilled if it fails to observe
the law scrupulously….. Government is the potent, omnipresent teacher. For good or for ill, it
teaches the whole people by its example…..If the government becomes a lawbreaker, it breeds
contempt for the law, it invites every man to become a law unto himself; it invites anarchy,”
It should not be necessary to force the State through a court order to comply with its
contractual obligations and an Applicant who is forced to seek such an order should not be out
of pocket. I am satisfied that Respondents’ conduct attracts the punitive cost order sought.
97. O’Regan J in 2009 in South African Liquor Traders’ Association v Chairperson,
Gauteng Liquor Board: 53
[46] I turn now to consider the question of costs. I consider first the question of the costs of
litigation in this Court, excluding the wasted costs of the hearing on 2 March 2006. The
applicants have successfully pursued constitutional relief in this Court and there is no reason
why they should not be awarded their costs.
[47] The question arises, however, as to the scale on which such a costs order should be made. The
applicants point to the dilatory and unhelpful manner in which the MEC and his officials
conducted the litigation both in the High Court and in this Court until after the Court made its
order on 2 March 2006. Although there can be no doubt that some of the fault for that conduct
is to be laid at the door of the third respondent’s attorneys, as I shall set out below, in my
52 2010 (4) SA 308 (LCC) 53 2009 (1) SA 565 (CC)
42
view the MEC bears responsibility for that conduct as well. His legal advisers were in
possession of many of the documents and failed to take appropriate steps to ensure that the
litigation proceeded smoothly and properly. The MEC must be responsible for the conduct of
his legal advisers.
[48] A court will ordinarily show its displeasure at the manner in which a litigant has conducted
himself during litigation by an award of costs on the attorney and client scale. As Tindall JA
remarked:
“The true explanation of awards of attorney and client costs not expressly authorised by
Statute seems to be that, by reason of special considerations arising either from the
circumstances which give rise to the action or from the conduct of the losing party, the court
in a particular case considers it just, by means of such an order, to ensure more effectually
than it can do by means of a judgment for party and party costs that the successful party will
not be out of pocket in respect of the expense caused to him by the litigation.”
[49] The MEC, as an organ of state, bears a special obligation to ensure that the work of courts is not
impeded. Moreover in this case the applicants have been seeking relief in respect of a provision in
a statute which is clearly vague on its own terms and therefore inconsistent with the Constitution.
Their attempts have been bedevilled by the manner in which the litigation has been approached by
the MEC and, in particular, his legal representatives including his own departmental legal advisers
as well as the State Attorney. In all these circumstances, this is an appropriate matter for costs to
be awarded against the MEC on the attorney and client scale.
The conduct of the State Attorney
[50] The final issue to be considered relates to the wasted costs of the hearing on 2 March 2006. It will
be recalled that on that date there was no timeous appearance by the State Attorney on behalf of
the MEC despite the State Attorney’s having been asked to be present by an official from the
Registrar’s office of this Court. Moreover, the State Attorney failed to inform its client of a
specific request from this Court to the MEC (in directions issued by this Court on 24 January
2006) to lodge affidavits in this matter. The affidavit lodged on behalf of the individual attorney
handling the matter indicates that she did not read the communication from the Court but merely
filed it, considering it to be an “update”.
[51] It is clear from both the affidavit and the argument tendered on behalf of the State Attorney in this
Court that the attorney concerned was recently qualified and inexperienced in constitutional
litigation. It does not appear from her affidavit that she sought a supervisor’s advice. Nor was
there any affidavit lodged by her superiors indicating what system exists in the State Attorney’s
office for the supervision of junior members of staff in important litigation such as this.
[52] The result is both unfortunate and serious. It is unfortunate because the effect in this case was to
43
give the impression that the MEC, a senior member of the executive in provincial government,
was not interested in assisting this Court in resolving important constitutional litigation. That
impression has now been rectified. It is serious because as a matter of common practice it is the
State Attorney who is briefed by the government when it is involved in litigation. Given the
government’s responsibility to assist the work of courts, a lapse of this sort in the State Attorney’s
office gives cause for grave concern.
[53] In my view, such a lapse called for an explanation to be tendered by a senior attorney in the office
of the State Attorney. It was not appropriate that the only explanation forthcoming from the State
Attorney’s office should have been from a young, inexperienced attorney alone. In so observing, it
needs to be said however that the explanation that the young attorney gave for not responding to
correspondence from this Court reflected a lamentable want of professional responsibility on her
part. It also reflects on her superiors who have evidently left her inadequately supervised and
trained.
[54] An order of costs de bonis propriis is made against attorneys where a court is satisfied that there
has been negligence in a serious degree which warrants an order of costs being made as a mark of
the court’s displeasure. An attorney is an officer of the court and owes a court an appropriate level
of professionalism and courtesy. Filing correspondence from the Constitutional Court without first
reading it constitutes negligence of a severe degree. Nothing more need be added to the sorry tale
already related to establish that this is an appropriate case for an order of costs de bonis propriis
on the scale as between attorney and client. The order is made against the office of the State
Attorney, not personally against the attorney concerned. This Court’s displeasure is primarily
directed against the office of the State Attorney in Pretoria whose systems of training and
supervision appear to be woefully inadequate.
98. Madala J in Nyathi v Member of the Executive Council for the Department of
Health Gauteng54
Conduct of the State Attorney
[64] It is here necessary to consider the manner in which the applicant sought to enforce the
judgment debt against the state. The applicant approached the State Attorney and requested
payment of the money owed. The State Attorney promised to pay and then failed to do so.
Reasons were not given for the failure to pay nor did the State Attorney offer any guidance as
to when payment would be made.
[65] The State Attorney then indicated that its client, the first respondent, had decided to bring
an application for rescission but could not indicate the basis of such application nor the
54 2008 (9) BCLR 865 (CC)
44
reason for the instruction. This protracted correspondence all occurred whilst the applicant’s
health deteriorated steadily. The applicant requested to communicate directly with the first
respondent and thereafter contacted the senior legal administrator in the first respondent’s
department. Communications failed between the parties and explanations as to the lack of
payment were still not forthcoming. The interim payment sought by the applicant was only
received when this Court made a request for such payment to be made.
[66] The fact that payment was only made once the applicant approached this Court for
relief reflects the fact that the current procedure of approaching the State Attorney is
not effective. There are multiple state institutions involved in the authorisation and
administration of debts against the state and this has contributed significantly to the
delays in this matter and related matters. It is a convoluted and difficult method
which is, as is evident in this matter, largely unsuccessful.
[67] It is evident from the factual matrix before us that there is a breakdown in
communication between the office of the State Attorney and the first
respondent. The first respondent is the client of the State Attorney yet there is much
‘bureaucratic bungling’ which impedes the delivery of justice. There is no need for
such delays when there is already in existence a court order for payment.
[68] An affidavit was presented on behalf of the State Attorney’s office indicating the
reasons for its failure to file an appearance to defend in the High Court, as well as its
failure to inform the relevant state officials of the outstanding judgment debts. The
reasons given are largely unsatisfactory and provide no real solution to problems
within the department.
[69] These reasons have, however, been taken into consideration, yet it must be noted that
this Court commented on this very problem over a year ago in the Liquor Traders
case. Precious little has since been done to rectify the situation and I cannot accept
further excuses for the ineptitude, especially after the State Attorney has been made
fully aware of the alarming state of affairs. In Liquor Traders, this Court made the
following remarks with regard to the inefficiency of the State Attorney:
“It is serious because as a matter of common practice it is the State Attorney who
is briefed by the government when it is involved in litigation. Given the
government’s responsibility to assist the work of courts, a lapse of this sort in the
State Attorney’s office gives cause for grave concern.
In that case, this Court ordered costs against the office of the State Attorney de bonis
propriis on the scale as between attorney and client, and not personally against the
attorney concerned. The costs order was indicative of the Court’s displeasure and
was “primarily directed against the office of the State Attorney in Pretoria whose
systems of training and supervision appear to be woefully inadequate.” Relying on
the moral obligation of the State Attorney and the Department of Justice to improve
the state of affairs has been an exercise in futility. I, accordingly, find that the
45
relevant state institutions should take steps to rectify the problems highlighted above
and report back to this Court as to the progress made.
[74] There is a desperate need for legislation to be enacted that will specifically target the
areas of concern outlined in this judgment. The apathy of state officials in their
failure to pay judgment debts cannot be addressed unless progressive, targeted steps
are taken towards solving these problems.
[76] The English Courts have looked at the possibility of holding officials responsible for
wrongs that they have committed in their official capacity. They proceed on the
premise that, in committing the wrongs, such officials are stepping outside of the
realm of protection afforded to public officials under the Crown Proceedings Act.
The possibility of a similar route in South Africa is, however tempting,
impractical. The committal of public officials would only result in the ‘naming and
shaming’ of such officials and would produce no real remedy for the aggrieved
litigant who is primarily concerned with the payment of the judgment debt. The
potential disruption of already overburdened state departments is also a result which
should be avoided.
[77] The problems faced in this matter are different. First, the procedures and mechanisms
required to enforce claims against the funds are lacking and this needs to be
addressed with due consideration of the competing interests involved in this matter.
[78] Secondly, state administration is inefficient and ineffective. The conduct of state
officials undermines the legitimacy of both the judiciary and the state. Generally,
relevant state departments are in the best position to assess the magnitude of the
problems faced by their personnel and are similarly in the best position to address the
systemic failure of state officials to perform their duties. These state institutions
need to look at these failings holistically and consider the best manner in which to
deal with the problems at hand. This Court is not in a position at this stage to assess
the problems faced.
J. CONCLUSION
99. In the memorable Nyathi decision, Madala J said the following about the
connection between our democracy and the manner in which state functionaries
performed their functions:
[80] Certain values in the Constitution have been designated as foundational to our
democracy. This in turn means that as pillar-stones of this democracy, they must be observed
scrupulously. If these values are not observed and their precepts not carried out
conscientiously, we have a recipe for a constitutional crisis of great magnitude. In a state
predicated on a desire to maintain the rule of law, it is imperative that one and all should be
46
driven by a moral obligation to ensure the continued survival of our democracy. That, in my
view, means at the very least that there should be strict compliance with court orders.
[81] The state’s function is to execute its duties in terms of the relevant legislation. The
failure of the state to edify its functionaries about the very legislation which governs their
duties is unacceptable. It may be true that the problem lies with the officials who do not know
what their responsibilities are and, regrettably, with legal representatives who do not know
who the responsible functionaries are. However, this ignorance is no justification for their
failings. It may explain the cause of the problem, but it constitutes neither a good excuse nor
a justification thereof and cannot serve to protect the state from being held responsible.
100. That judgment, coming as it did from the highest court in our land, should
have been sufficient to galvanise the State Attorney into mending its ways.
Clearly, if regard is had to the extracts of the judgments referred to above, it
has not done so.
101. Messrs Matlou and Macheke and Dr Cele have addressed in their affidavits
issues around their conduct and decision making in this case and I am satisfied
that they have properly been heard. The rule nisi foreshadowed the
consideration of a special cost order against the responsible officials.
102. In the circumstances I make the following order:
102.1. Ezekiel Matlou; Jabulani Macheke and Kgoposi Cele are ordered to
pay de bonis propriis 50% of the costs (identified as such paragraph
134 of my first order of 16 October 2014) jointly and severally with
the defendant on the attorney and client scale.
102.2. In the event of the plaintiff recovering all of her costs from the
defendant, the defendant is ordered to recover 50% of the costs paid by
her to the plaintiff de bonis propriis from Messrs Matlou; Macheke
and Cele jointly and severally.
47
102.3. The conduct of Mr Matlou is referred to the Law Society of the
Northern Provinces for investigation and such further action as it may
deem fit.
102.4. The registrar is directed to send a copy of this judgment, as well as the
judgment in this matter of 16 October 2014 to the Law Society of the
Northern Provinces with the request that the Law Society investigate
the conduct of Mr. Ezekiel Matlou as appears from this judgment with
a view to taking such action as the Law Society may consider
appropriate.
R M Robinson AJ
26 November 2014
Date of hearing : 28 October 2014
Date of Judgment: 26 November 2014
Plaintiff’s counsel: Adv Pillay SC
Instructed by: Wright Rose Innes, Johannesburg
Defendant’s counsel: Adv R Latib
Instructed by: State Attorney, Johannesburg